Legality

United States
 

The legality of wardriving in the United States is not clearly defined. There has never been any conviction for wardriving, and there is the untested argument that the 802.11 and DHCP protocols operate on behalf of the owner giving consent to use the network, but not if the user has other reason to know that there is no consent.

A New Hampshire bill which would clarify that the duty to secure the wireless network lies with the network owner has not passed yet, due to concerns that it may create a loophole for criminal activity. The specific laws, in any case, vary from state to state. A Florida man was arrested and charged with unauthorized access to a computer network, a third-degree felony in the state of Florida, after wirelessly connecting to and hacking into a computer network. It is important to note here that the crime was piggybacking, not wardriving (see above).
 

United Kingdom
 

A wardriver in the United Kingdom might be caught with controversial clause of "use of a computer for a purpose for which one does not have permission". This is a commonly misunderstood concept. Wardrivers do not, in fact, use services without authorization and may not even transmit a signal at all if using passive mode software (e.g. Kismet or KisMAC) instead of active mode software (e.g. Netstumbler).

With particular regard to the UK Wireless Telegraphy Act 1949 and 1989 (as amended), [WT Act] how the legislation is applied will depend on the individual circumstances of the offence. There is no specific reference to the practice of "wardriving", however the WT Act does contain general provisions which may be applicable.

Wireless Telegraphy Act

Anyone who intends to listen to radio transmissions should be aware of the following:

A licence is not required for a radio receiver as long as it is not capable of transmission as well (The Wireless Telegraphy Apparatus (Receivers) (Exemption) Regulations 1989 (SI 1989 No 123). Furthermore, Wi-fi devices are a subset (defined under IEEE 802.11 interoperability standards) of the licence exempt RLAN segment of the 2.4Ghz radio frequency band. Under the terms of the exemption, a licence is only required for the operation of commercial wi-fi services such as "hotspots".

However, although it is not illegal to sell, buy or own a scanning or other receiver in the UK, it must only be used to listen to transmissions meant for GENERAL RECEPTION. The services that you can listen to include Amateur and Citizens' Band transmissions, licensed broadcast radio and weather and navigation broadcasts.

It is an offence to listen to any other radio services unless you are authorised by a designated person to do so.

There are two offences under law:

Under Section 5(1)(b) of the WT Act 1949 it is an offence if a person "otherwise than under the authority of a designated person,

either:

(i) uses any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any message whether sent by means of wireless telegraphy or not, of which neither the person using the apparatus nor a person on whose behalf he is acting is an intended recipient;

This means that it is illegal to listen to anything other than general reception transmissions unless you are either a licensed user of the frequencies in question or have been specifically authorised to do so by a designated person. A designated person means:

• the Secretary of State;
• the Commissioners of Customs and Excise; or
• any other person designated for the purpose by regulations made by the Secretary of State.

or:

(ii) except in the course of legal proceedings or for the purpose of any report thereof, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of wireless telegraphy apparatus by him or by another person."

This means that it is also illegal to tell a third party what you have heard.

With certain exceptions, it is an offence under Section 1 of the Regulation of Investigatory Powers Act 2000 for a person - "intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of:

• a public postal service; or
• a public telecommunication system."

It is similarly an offence to intercept any communication in the course of its transmission by means of a private telecommunication system.

This means that it is illegal to listen to telephone calls, including mobile phone networks which are designated as forming part of the public telecommunications system.

Analysis

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As mentioned above, the practice of "wardriving" includes:

• The objective to log and collect information from the wireless access points (WAPs) they find while driving.
• Measuring the location of the network find and log it on a website.

Whilst it can be argued that "wardriving" is a passive activity on a "licence exempt" part of the spectrum, this is not necessarily always the case - since certain WAPs can, indeed, be licenced under the WTA for commercial purposes. More importantly, since neither the "wardriver" (the person using the apparatus) nor a person on whose behalf he may be acting is an intended recipient, this would appear to be an infringement of part (i) of Section 5(1)(b).

In addition, the publication of any data obtained could easily be interpreted as an offence under part (ii) of Section 5(1)(b), especially if the log included "information" broadcast by the host (e.g. the SSID).